Office of Attorney Regulation Counsel ANNUAL REPORT 2014

COLORADO SUPREME COURT Office of Attorney Regulation Counsel ANNUAL REPORT 2014

“A license to practice law is a proclamation by this Court ...

… that its holder is a person to whom members of the public may entrust their legal affairs with confidence; that the attorney will be true to that trust; that the attorney will hold inviolate the confidences of clients; and that the attorney will competently fulfill the responsibilities owed to clients and

to the courts.”

— Colorado Rule of Civil Procedure 251.1(a)

Special thanks to BRYAN LOPEZ for his photography TABLE OF CONTENTS

Who We Are 1

Colorado Supreme Court Justices 2

Supreme Court Advisory Committee 2

Office of Attorney Regulation Counsel 2

Permanent Committees 6

What We Do 9

Admissions 11

Registration/CLE 15

Regulation 20

Case Monitor 26

Inventory Counsel 27

Education/Outreach 28

Committees 31

Appendices 33 WHO WE ARE

1 ttorney Regulation Counsel serves at the pleasure of the Colorado Supreme Court. The Supreme Court Advisory Committee assists the Court by A reviewing the productivity, effectiveness and efficiency of the attorney regulation system, including Attorney Regulation Counsel.

The Office of Attorney Regulation Counsel works with seven other permanent Supreme Court committees in regulating the practice of law in Colorado. Attorney Regulation Counsel oversees attorney admissions, registration, mandatory continuing legal and judicial education, diversion and discipline, regulation of unauthorized practice of law, and administrative support for the Client Protection Fund. Sixty-two full-time employees work in this office. JUSTICES OF THE COLORADO SUPREME COURT Chief Justice Nancy E. Rice Justice Monica M. Márquez Justice Gregory J. Hobbs, Jr. Justice Brian D. Boatright Justice Nathan B. Coats Justice William W. Hood, III Justice Allison H. Eid

SUPREME COURT ADVISORY COMMITTEE David W. Stark, Chair Richard A. Nielson Steven K. Jacobson, Vice-Chair Henry R. Reeve Nancy L. Cohen Alexander R. Rothrock Cynthia F. Covell Daniel A. Vigil Mac V. Danford Brian Zall Cheryl Martinez-Gloria Justice Nathan B. Coats David C. Little Justice Monica M. Márquez Barbara A. Miller

OFFICE OF ATTORNEY REGULATION COUNSEL James C. Coyle Attorney Regulation Counsel

Jim Coyle is Attorney Regulation Counsel for the Colorado Supreme Court. Mr. Coyle has been a trial attorney with the Office of Disciplinary Counsel or successor Office of Attorney Regulation Counsel since 1990. Prior to that, he was in private practice. He earned his law degree from the University of Colorado School of Law in 1985.

Mr. Coyle is actively involved on a national level with the National Client Protection Organization, the ABA Standing Committee on Client Protection, the National Conference of Bar Examiners, National Organization of Bar Counsel, National Continuing Legal Education Regulators Association.

Recent committee work includes acting as co-chair and organizer of the First Annual ABA Standing Committee on Client Protection UPL School in Denver in August 2013; NCBE Uniform Bar Examination Administrators Group; National Organization of Bar Counsel (NOBC) Program Committee, Special Committee on Permanent Retirement, Aging Lawyer Committee and GATS Subcommittee; Colorado Supreme Court Advisory subcommittees on Rule revisions (COLAP, CAMP, Student Practice Rule, Provision of Legal Services in a Major Emergency, Rules of Seven, Rules Governing Admissions and Continuing Legal Education, to name a few); and Colorado Chief Justice Commission

Management Team

James S. Sudler Chief Deputy Regulation Counsel, Trial Division Jamie Sudler is Chief Deputy Regulation Counsel overseeing the trial division. Mr. Sudler has more than 35 years of experience, both as a private attorney and as a prosecutor in the Denver District Attorney’s Office and in the Colorado Attorney General’s Office. He earned his law degree from the University of Denver. Mr. Sudler designed and developed Trust Account School and regularly teaches at the Colorado Supreme Court Ethics School. He recently completed a 26-day trial in Phoenix of the former Maricopa County Attorney and two of his deputies for ethical violations over a period of years. The trial resulted in the disbarment of Andrew Thomas, who was Maricopa County Attorney, and his deputy Lisa Aubuchon. Another deputy, Rachel Alexander, was suspended for six months after her appeal to the state’s Supreme Court. Matthew A. Samuelson Chief Deputy Regulation Counsel, Intake Division and Operations Matthew Samuelson is Chief Deputy Regulation Counsel overseeing the intake division, admissions and mandatory continuing legal and judicial education. Mr. Samuelson received his undergraduate degree from St. John’s University in Minnesota and his law degree from the DePaul University College of Law. He is a former judge advocate in the United States Air Force. After leaving active duty, Mr. Samuelson practiced as a deputy public defender in Minnesota and was in private practice in Denver focusing in the area of defending municipalities and other governmental entities in civil rights litigation.

He has worked for the Office of Attorney Regulation Counsel since September 2000, and is a member of the Colorado Bar Association, the American Bar Association, and the National Organization of Bar Counsel.

Charles E. Mortimer Deputy Regulation Counsel, Trial Division

Charles E. Mortimer (Chip) is Deputy Regulation Counsel in the trial division. Mr. Mortimer received his undergraduate degree from Tufts University in 1983, and his law degree from the College of William and Mary in Virginia in 1986. He was licensed to practice law in Colorado in 1986 and spent fourteen years in private practice, before joining the Office of Attorney Regulation Counsel.

Chip has served on the Thursday Night Bar Association Board of Directors, the First Judicial District Board of Trustees and Governor Owens' Commission on Civil Justice Reform. Prior to coming to the Office of Attorney Regulation Counsel, Chip chaired the Colorado Lawyer's Fidelity Fund and served as a Trustee on the Colorado Lawyer's Fund for Client Protection.

Margaret B. Funk Deputy Regulation Counsel, Intake Division and Human Resources

Margaret Brown Funk is Deputy Regulation Counsel in the intake division. Ms. Funk joined the Office of Attorney Regulation Counsel in 2006. She graduated from the University of Denver College of Law in 1994.

In private practice, she represented individuals in civil rights matters, primarily in the area of employment law. Between 1995 and 1998, she served as President and Vice President of the Colorado Plaintiffs Employment Lawyers Association (PELA). Between 1998 and 2005, she served as a member of the PELA board of directors and was assigned the duties of chair of the legislative committee and liaison to the Colorado Bar Association. She has published several articles in the Colorado Trial Lawyers Association’s monthly magazine, Trial Talk, and has lectured extensively on civil rights, litigation, and legal ethics.

Assistant Regulation Counsel Louise Culberson-Smith1 Brooke H. Meyer Amy C. DeVan2 Geanne R. Moroye Adam J. Espinosa3 Timothy J. O’Neill Jill Perry Fernandez Katrin Miller Rothgery Lisa E. Frankel Catherine Shea Kim E. Ikeler Jacob Vos4 Erin Robson Kristofco Jennifer Wascak4 April McMurrey4 E. James Wilder

Staff Attorneys Marie Nakagawa Alan Obye

Attorney Admissions Susan Gleeson, Director of Melissa Petrucelli, Director of Examinations Character and Fitness

Attorney Registration and Continuing Legal and Judicial Education Elvia Mondragon, Clerk of Attorney Registration and Director of Continuing Legal and Judicial Education

Investigators Trial Division Karen Bershenyi Donna Scherer Mary Lynne Elliott Laurie Ann Seab Janet Layne

Intake Division Rosemary Gosda Carla McCoy

1 Louise Culberson-Smith retired in 2014. 2 Amy DeVan left the office in the summer of 2014 to become the Executive Director of the Independent Ethics Commission. 3 The Honorable Adam Espinosa left the office in 2015 to become a judge on the Denver County Court 4 April McMurrey, Jacob Vos, and Jennifer Wascak joined the office as Assistant Regulation Counsel in January 2015.

Admissions Michelle Meyer Deb Ortiz

Inventory Counsel Carola Rhodes, Inventory Counsel Coordinator

Information Resources Coordinator James Carlson

PERMANENT COMMITTEES

Board of Law Examiners Law Committee Richard Nielson, Chair David D. Powell, Jr.

John J. Barry Barry Schwartz6

Jennifer C. Fortier5 Sunita Sharma5 Hon. Terry Fox Magistrate Holly Strablizky John Greer Justice Nathan B. Coats Eric Liebman (Liaison) Laura M. Maresca Justice Monica Márquez (Liaison) Dayna B. Matthew

Christopher T. Macaulay6 Character & Fitness Committee Brian Zall, Chair David Diffee, Ph.D.

5 New Member, started January 1, 2015 6 Term Expired December 31, 2014

Deborah Bianco7 Kimberly Nordstrom, M.D.7 Jay E. Fernandez Lorraine E. Parker Stephen J. Hensen Henry R. Reeve L. Jay Labe7 Corelle M. Spettigue Carolyn D. Love8 Justice Nathan B. Coats Linda Midcap8 (Liaison) Kelly Murphy Justice Monica Márquez (Liaison) Board of Continuing Legal and Judicial Education

David C. Little, Chair David A. Price Peter Cannici Susan S. Riehl Melissa Hart Gordon Scheer

Hon. Andrew P. McCallin8 Justice Nathan B. Coats (Liaison) Dawn M. McKnight Justice Monica M. Marquez Nathifa M. Miller (Liaison) Barbara J. Mueller 7 Attorney Regulation Committee Steven K. Jacobson, Chair Carey Markel

Mac V. Danford Linda Midcap7

Diana D. Brown8 Kurt L. Miller, D.M.7 Doris C. Gundersen, M.D. Lance Timbreza

Barbara J. Kelley Luis M. Terrazas8 Steven C. Lass

7 Term Expired December 31, 2014 8 New Member, started January 1, 2015

Unauthorized Practice of Law Committee

Cheryl Martinez-Gloria, Samantha Halliburton Chair Brenda Mientka Elizabeth A. Bryant William M. Ojile10 Elsa Djab Burchinow Anthony J. Perea11 John V. Egan III9 Martha Rubi Judy L. Graff Charles Spence11 Board of Trustees, Attorneys Fund for Client Protection Charles Goldberg, Chair Michael B. Lupton

Katayoun A. Donnelly11 Hon. Andrew P. McCallin10 Yoland M. Fennick David A. Mestas Melinda M. Harper Charles Turner

Colorado Commission on Judicial Discipline Hon. Martha Minot, Chair David Kenney Federico Alvarez Hon. Leroy Kirby Kathleen Kelley Hon. Ted C. Tow III Yolanda Lyons Hon. William D. Robbins Richard O. Campbell William J. Campbell (Executive Director) David L. Dill

9 Resigned September 25, 2014 10 Term Expired December 31, 2014 11 New Member, started January 1, 2015

WHAT WE DO

What We Do he Office of Attorney Regulation Counsel’s duties involve all phases of the practice of law in Colorado. The primary purpose behind each of these duties Tis protection of the public, ensuring that Colorado providers of legal services are competent, diligent, communicative, honest and in compliance with the Colorado Rules of Professional Conduct.

The Office of Attorney Regulation Counsel administers the bar examination, screens each applicant’s character and fitness to practice law in Colorado, and enforces all other attorney admission and annual registration functions. The office educates the general public and the legal profession on the underlying duties and requirements contained in the Colorado Rules of Professional Conduct. The office enforces the Colorado rules regarding attorney discipline and disability proceedings and mandatory continuing legal and judicial education. When necessary, the office oversees the handling of client files for attorneys who can no longer practice law.

The Office of Attorney Regulation Counsel also investigates and prosecutes individuals who cause harm to consumers when engaging in the unauthorized practice of law in Colorado. The office assists the Board of Trustees in administering the Attorneys’ Fund for Client Protection, and the Commission on Judicial Discipline when requested. A more complete listing of office duties can be found in Appendix A.

ATTORNEY ADMISSIONS

OVERVIEW Attorney Admissions is the first stop within the regulatory system for attorneys wanting to practice law in the state of Colorado. The office is charged with administering the bar exam and conducting character and fitness reviews of exam, on-motion, and Uniform Bar Exam transfer applicants.

The Director of Character & Fitness, one full-time investigator, one part-time investigator, and four staff assistants review applications for character and fitness qualifications. By addressing concerns with applicants before they become practicing attorneys, the character and fitness process takes a proactive role in protecting the public.

In 2014, the Rules Governing Admission to the Practice Law were revised for the first time in years. The main goal of these changes was to bring consistency to the admissions process.

The new rules expanded the Advisory Committee jurisdiction to include oversight of all practice-of-law functions and made permanent the December 2011 Supreme Court interim order that incorporates admissions and CLJE staff functions into the Office of Attorney Regulation Counsel. They also updated application and character and fitness screening procedures to incorporate the Office of the Presiding Disciplinary Judge into the admissions hearing process and updated procedures for admissions hearings, revocation proceedings, and Supreme Court review. The changes also codified the character and fitness guidelines into the rules, providing clear examples of conduct by which prospective attorneys will be measured when determining their admission eligibility.

Also, 2014 was the second full year that the office employed holistic grading for the Colorado Bar Exam and continued to improve upon the graders’ conference, which is designed to increase the uniformity, reliability and integrity of the scoring process by having all answers graded at one time when the graders are focused and calibrated.

Fewer people sat for the both editions of the Colorado Bar Exam in 2014 than in 2013. This reflects the nationwide trend of declining law school enrollment.

BAR EXAM Attorney Admissions works with the Board of Law Examiners, whose volunteer members provide citizens’ advice and direction on the execution of the office’s duties. The Board consists of two committees — the Law Committee and the Bar Committee.

The office works with the Law Committee to administer two bar examinations each year, one in February and one in July. The Law Committee is composed of 11 volunteer members appointed by the Supreme Court. It reviews and approves the standards that must be met to pass the written examination.

In 2014, a total of 1,240 people sat for the bar exam:12

 392 took the February bar exam:

o 281 passed (72 percent pass rate); and

o 79 percent first-time-examinee pass rate.

 848 took the July bar exam:

o 632 passed (75 percent pass rate); and

o 78 percent first-time-examinee pass rate.

Attorney Admissions also processes on-motion and Uniform Bar Exam (UBE) score transfer applications.13

12 For a detailed break-down of bar exam statistics, see Appendix B 13 Colorado and 14 other states currently comprise this Uniform Bar Exam (UBE) compact. Each of these states accept scores transferred from the other states administering the Uniform Bar Exam. The other UBE states are: Alabama, Alaska, Arizona, Idaho, Kansas, Minnesota, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Utah, Washington and Wyoming.

In 2014, the office processed 295 new on-motion and UBE score transfer applications:

 238 new on-motion applications were received:14 o 123 on-motion applications were approved for admission; and

o 5 on-motion applications were denied for admission.

 57 new UBE applications were received.

CHARACTER AND FITNESS Attorney Admissions reviews all bar exam, on-motion, and Uniform Bar Exam applications for moral and ethical qualifications. Applicants are required to disclose details about their past including any criminal or civil court proceedings, financial problems, and other issues relevant to the applicants’ moral and ethical qualifications.

The office works with the Character and Fitness Committee to review applicants. The Character and Fitness Committee is charged with investigating applicants’ mental stability, education, professional experience, and ethical and moral qualifications for admission to practice law.

If information provided by an applicant or obtained during the character and fitness review raises concerns, he or she may appear before an inquiry panel composed of members from the Character and Fitness Committee.

An inquiry panel is composed of five members from the Character and Fitness Committee: four attorneys and one non-attorney. The inquiry panel can either approve admission, defer action until an applicant addresses trouble areas in their application, or deny admission based on the guidelines set forth in the admissions rules, particularly C.R.C.P. 208.1.

Should the inquiry panel deny an application, an applicant can request a formal hearing or contest the inquiry panel’s decision. The Supreme Court retains the

14 The number of on-motion applications received and number of on-motion applications approved and denied don’t reconcile because of a few factors. For instance, many applications received don’t meet the eligibility requirements such as practicing for 3 to 5 years and are therefore never processed. Also, many applications received in late 2014 were still being reviewed in 2015.

ultimate decision-making authority over whether an application is granted or denied.

In 2014, the Office of Attorney Admissions reviewed 1,621 applications to determine the character and fitness qualifications of applicants:

 32 applications were forwarded to an inquiry panel:

o 27 applicants were admitted;

o 1 case was deferred by an inquiry panel; and

o 4 applications were found to have probable cause to deny.15

In appropriate cases, Attorney Admissions sends letters to applicants alerting them to the Colorado Lawyer Assistance Program (COLAP), and its services. The program is confidential and connects those in the legal community with resources to help with mental health issues, substance abuse problems, financial issues, gambling problems, relationship issues, grief counseling, aging in the profession and other similar topics. In 2014, the Office of Attorney Admissions sent COLAP letters to more than 33 applicants. In addition, Attorney Regulation Counsel and staff regularly appear at the state’s two law schools, beginning with first-year orientation. These visits are to educate law students about the admissions process, COLAP and OARC resources, and professional responsibility issues.

15 All four applicants requested a formal hearing. One of those applicants was admitted following a hearing.

ATTORNEY REGISTRATION AND CLE OVERVIEW Once an applicant meets admission requirements, Attorney Registration completes the process by ensuring the proper administration of the oath. Attorneys then register annually with the office and pay annual license fees. Colorado ended 2014 with 38,454 registered attorneys, up 2 percent over last year and up 13 percent since 2009.

The annual Colorado Attorneys in 2014, active and inactive by age license fees fund 6414 the Attorneys 5851 Fund for Client 5464 5193 Protection and Active - 25,665 defray the costs of attorney Inactive - 12,789 regulation 3371 (including the 2870 Office of the 2311 2021 Presiding Disciplinary 1375 1147 1214 Judge), attorney 749 registration, 210 177 76 11 continuing legal and judicial 29 & 30-39 40-49 50-59 60-69 70-79 80-89 90+ No valid Younger DOB education, enforcement of the unauthorized-practice-of-law rules, the Colorado Lawyer Assistance Program, the Colorado Attorney Mentoring Program, the Commission on Judicial Discipline, and some library services.

The office is run by the Clerk of Attorney Registration and CLE Regulation and is aided by five full-time staff members.

In 2014, the office began admitting attorneys under a host of new classifications as set out in the new Rules Governing Admission to the Practice of Law. (See right.)

The office also Military Spouse Rule ‘Opens Doors’ undertook changes to better address issues When Evelyn Guevara’s military husband was reassigned to New Mexico in 2009, she faced an arduous application process and bar facing certain exam preparation — all for the third time in three years. segments of the legal The idea was too much, so she chose to start her family. Her career profession. The office was put on hold for four years. changed its “It was so frustrating not to be able to grow professionally,” she said. registration form to But when Guevara’s husband was again reassigned to Colorado in collect better summer 2014, her luck changed. The Colorado Supreme Court was demographic statistics considering a streamlined admissions process for military spouses. On Sept. 1, 2014, the Military Spouse Certificaiton went into effect. on the state’s lawyer Three weeks later, Evelyn was admitted to practice becoming one of profession. (You can the first admittees under the new rule. review detailed Colorado is one of only 12 states with such a measure. An additional statistics on attorney dozen states are considering changes. demographics in The new Colorado Rule of Civil Procedure 204.4 recognizes the Appendix C.) With an unique mobility requirements of military spouse attorneys and removes many of the hoops that traditional applicants have to go accurate picture of our through. There is no bar exam and only a truncated character and lawyer population, we fitness review. hope to provide better Guevara said she is happy she landed in Colorado, one of the few resources to specific states to accommodate her. groups of attorneys in “It just opens so many doors,” she said. the future.

This year was also the first full year using an online CLE affidavit submission system. The change helped increase accuracy, reduce staff data-entry time and improve user-friendliness.

ATTORNEY REGISTRATION

Attorney Registration maintains the roll of licensed attorneys in the state of Colorado.

The state began the year with 37,692 licensed Colorado attorneys and ended with 38,437:

 25,737 active attorneys; and  12,700 inactive attorneys.

Attorney Registration approved for admission 1,798 new attorneys:

 914 new lawyers who were admitted through the bar exam;

 45 new lawyers who were admitted through application of UBE requirements;

 245 new lawyers who were admitted by on-motion applications from a reciprocal admissions state;

 63 new lawyers who were admitted as single-client certification attorneys;

 496 new lawyers who were admitted pro hac vice;

 1 new lawyer who was admitted under the temporary professor rule;

 2 new lawyers who were admitted under the military spouse rule;

 1 new lawyer who was admitted under the judge advocate certification;

 19 lawyers who were admitted under the pro bono emeritus status; and

 12 new lawyers who were admitted under the practice pending admission rule.

CONTINUING LEGAL AND JUDICIAL EDUCATION Attorneys have to meet continuing legal education requirements on a three-year cycle. Attorney Registration works with the Board of Continuing Legal and Judicial Education to accredit CLE courses and process affidavits affirming attorneys’ attendance at events. The Board consists of nine members: six attorneys, one judge and two non-attorneys who provide citizen voices in administration of the mandatory continuing legal and judicial education system.

This year was the first full year using a web-based affidavit system. Attorneys can now enter their CLE affidavits online. The system also allows attorneys who lose the form provided at CLE programs to look up the course and to monitor their transcript.

In 2014, the Board of Continuing Legal and Judicial Education:

 Processed 92,298 CLE affidavits;

 Processed 33 additional CLE affidavits for mentoring;

 Processed 59 additional CLE affidavits for pro bono work; and

 Accredited 5,755 CLE courses.

In May 2013, a subcommittee was formed to review and consider revisions to the current Rules and Regulations pertaining to Mandatory Continuing Legal and Judicial Education. These Rules and Regulations need thorough review and analysis due to the fact that they still contain information and dates specific to the time they were adopted in the late-1970s. The subcommittee hopes to propose revised Rules to the Supreme Court through the Court’s Advisory Committee in the fall of 2015.

“I do solemnly swear ...

… that I will support the Constitution of the United States and the Constitution of the State of Colorado; I will maintain the respect due to Courts and judicial officers; I will employ only such means as are consistent with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado Rules of Professional Conduct.”

— Colorado Attorney Oath of Admission

ATTORNEY REGULATION OVERVIEW Attorney Regulation Counsel’s traditional role is to investigate, regulate and, when necessary, prosecute attorneys accused of more serious violations of the Colorado Rules of Professional Conduct.

The Colorado model of attorney regulation is designed to move cases of minor ethical misconduct toward a quick resolution and devote its resources to cases that involve more serious attorney misconduct. The goal is to protect the public while nurturing and educating attorneys to prevent future misconduct.

In 2014, Attorney Regulation Counsel received 20,109 calls. Of those, 3,528 were calls filing a request for investigation against an attorney. The office’s intake division reviewed all of those cases and processed 346 matters for full investigation by the trial division.

The trial division worked those 346 cases in addition to 231 cases carried over from 2013. In total, the Office of Attorney Regulation’s work in 2014 resulted in:

 190 dismissals with educational language;

 82 diversion agreements;

 1 public censure;

 44 suspensions;

 27 probations; and

 9 disbarments.

INTAKE DIVISION The intake division acts as the office’s triage unit. Its six attorneys, two investigators and three legal assistants are the front line for all complaints, deciding how a case is handled and whether it moves forward.16

Trained specialists take all calls to the office and, if necessary, assign the case to an intake attorney. That attorney reviews the facts, then decides whether the Colorado Rules of Professional Conduct are implicated and whether further investigation is warranted.

Intake attorneys have numerous options. They can dismiss cases outright; issue letters with educational language to the respondent-attorney; agree in cases of minor misconduct to an alternative to discipline involving education or monitoring; or forward matters of more serious misconduct to the trial division.

In 2014, central intake handled 20,109 telephone calls. The intake division:

 Reviewed 3,528 requests for investigation;17

 Entered into 45 diversion agreements;

 Dismissed 181 cases with educational language;

 Processed 346 cases for further investigation by the trial division.

Magistrates Attorney Regulation Counsel is responsible for handling complaints against state court magistrates.

In 2014, 45 complaints were filed against magistrates — of those, 43 were dismissed and two remained pending.

Trust Account Attorneys in private practice are required to maintain a trust account in an approved Colorado financial institution. Those financial institutions agree to report to Attorney Regulation Counsel any overdraft on the trust accounts. The

16 For detailed statistics on the intake division, see Appendix D. 17 For a breakdown of complaints by practice area and by nature of complaint, see Appendix E.

reporting requirement is designed as an early warning that an attorney is engaging in conduct that may harm clients. Reports of overdrafts receive immediate attention.

In 2014, the Office of Attorney Regulation Counsel received 269 notices of trust account checks drawn on insufficient funds. These matters were handled through the investigation process described above.

TRIAL DIVISION The next stop for a case is the trial division. In 2014, the trial division handled the 346 cases processed by the intake division as well as 231 cases carried over from 2013.18

The trial division’s attorneys, non-attorney investigators and legal assistants investigate the cases. At the end of the investigation, there are numerous outcomes, many intended to quickly resolve less serious matters.

In 2014, during the investigation phase, the trial division:

 Recommended the dismissal of 76 cases, 9 of them with educational language; and

 Entered into 20 conditional admission agreements approved by the Presiding Disciplinary Judge; and

If at the end of the investigation phase, one of the above resolutions is not reached, trial counsel prepares a report recommending formal proceedings. That report is presented to the Attorney Regulation Committee, which comprises nine members: six attorneys and three public members who act as an outside perspective and gatekeeper for all official disciplinary proceedings against respondent attorneys. The Committee considers reports prepared by Office of Attorney Regulation Counsel attorneys and determines whether reasonable cause exists to seek discipline.

18 For detailed statistics on the trial division process, see Appendices F through J.

In 2014, the trial division presented 181 matters to the Attorney Regulation Committee.19 The Committee approved:  102 formal proceedings;

 37 diversion agreements; and

 4 private admonitions.

Several of the 102 matters in which the Office of Attorney Regulation Counsel was authorized to file a formal complaint were consolidated. In certain cases, after authority to file a formal complaint was obtained, Attorney Regulation Counsel and the respondent attorney entered into a conditional admission prior to the filing of a formal complaint.

In 2014, after receiving authorization to file a formal complaint, the Attorney Regulation Counsel:

 Filed 41 formal complaints;

 Resolved 7 matters prior to filing a formal complaint; and

 Entered into 27 conditional admissions agreements.

The 41 formal complaints filed in 2014, and those pending from 2013, resulted in 16 discipline trials before the Presiding Disciplinary Judge.

OTHER ACTIONS20 Immediate Suspensions On rare occasions, the Office of Attorney Regulation Counsel may seek the immediate suspension of an attorney’s license in order to protect the public. An immediate suspension may be appropriate when there is reasonable cause to believe that an attorney is causing immediate and substantial public or private harm. Additionally, the office can seek such action if an attorney is in arrears on a

19 Because some matters are carried over from one calendar year to the next, the number of matters reviewed by the Attorney Regulation Committee will not conform to the number docketed or completed in the investigations area. 20 For detailed statistics on Other Actions, see Appendix K.

child-support order or is not cooperating with Attorney Regulation Counsel as required by the Colorado Rules of Professional Conduct.

In 2013, the Office of Attorney Regulation Counsel filed 19 petitions for immediate suspension. Of those, 13 were granted, 5 were withdrawn, and 1 remained pending:

 8 involved attorneys causing immediate and substantial harm;

 1 involved failure to pay child support;

 3 involved failure to cooperate with Attorney Regulation Counsel; and

 1 involved a felony conviction.

Disability Matters When an attorney is unable to fulfill professional responsibilities due to physical, mental, or emotional illness, the Office of Attorney Regulation Counsel may file a petition to transfer an attorney to disability status. This is not a form of discipline.

In 2014, the Office of Attorney Regulation Counsel filed 15 petitions to place attorneys on disability status. Thirteen were granted. Two were denied. One remained pending.

Contempt Proceedings The Office of Attorney Regulation Counsel may file a motion with the Supreme Court recommending contempt for an attorney practicing law while under suspension or disbarment.

In 2014, the Office of Attorney Regulation Counsel filed 3 motions for contempt. Three attorneys were held in contempt (including one pending case from 2013) and one case from 2014 remained pending at the end of the year.

Reinstatement and Readmission Matters Attorneys who have been disbarred or suspended for at least one year and one day must apply for readmission or reinstatement. The process is similar to an attorney discipline case and is intended to assess the attorney’s fitness to return to the practice of law. In readmission and reinstatement matters, the applicant attorney must prove rehabilitation and other elements by clear and convincing evidence.

In 2014, 8 attorneys applied for reinstatement or readmission:

 4 were reinstated;

 1 application was dismissed;

 1 was denied; and

 4 matters were pending at the close of 2014.

Unauthorized Practice of Law21 The Office of Attorney Regulation Counsel, in coordination with the Unauthorized Practice of Law Committee (UPL), investigates and prosecutes allegations of the unauthorized practice of law. The UPL Committee is composed of nine members: six attorneys and three non-attorneys who provide a community perspective on UPL regulation and who retain jurisdiction over complaints of unauthorized practice of law.

In 2014, the Office of Attorney Regulation Counsel received 72 requests for investigation alleging the unauthorized practice of law. Of those 72 matters, 68 were completed in 2014:  35 were dismissed by Attorney Regulation Counsel;

 14 resulted in written agreements to refrain from the conduct in question; and

 19 resulted in an injunctive or contempt proceeding.

Attorneys Fund for Client Protection The Office of Attorney Regulation Counsel assists the Board of Trustees for the Attorneys Fund for Client Protection by investigating claims made on the fund, alleging client loss due to the dishonest conduct of an attorney. The statistics for this work are shown in a separate annual report, posted on www.coloradosupremecourt.com, “Attorneys Fund for Client Protection Annual Report 2014.”

21 For detailed statistics on the Unauthorized Practice of Law, including a breakdown of UPL cases by Type of Complaining Witness and Type of Legal Service, see Appendix L.

Commission on Judicial Discipline The Office of Attorney Regulation Counsel acts as Special Counsel for the Colorado Commission on Judicial Discipline on request of the Executive Director. In 2014, the Office of Attorney Regulation Counsel continued as special counsel on one judicial discipline matter that concluded in early 2014 with a public censure and resignation.

CASE MONITOR

The cornerstones of Colorado’s attorney regulation system are the diversion (alternative-to-discipline) agreement and probation conditions in discipline matters. Diversion agreements and probation conditions protect the public while allowing an otherwise competent attorney to continue practicing.

Central to these agreements is SOBERLINK Provides Better Service monitoring. An attorney respondent must adhere to The Office of Attorney Regulation Counsel is always looking for ways to better facilitate an attorney’s conditions agreed to by this office recovery from drug or alcohol addiction. Toward that and the attorney. Those goal, the office switched to a new breath alcohol conditions can include attendance testing unit in 2014. at our office’s trust account school Studies show that consistent monitoring early in or ethics school, submitting to recovery can dramatically improve outcomes. Yet, drug or alcohol monitoring, or many attorneys under supervision for alcohol receiving medical or mental dependence weren’t complying as often as they should. For many attorneys, they were not willfully health treatment. disregarding the conditions of their alternative-to- discipline program. They simply found the alcohol To ensure compliance, this office testing unit too bulky and were uncomfortable pulling employs a full-time case monitor. it out in public. The case monitor’s relationship The new unit, the SOBERLINK Breathalyzer, is compact with respondent attorneys begins and can send results over the internet for discreet, when the monitor sends a convenient and cost-effective monitoring. calendar detailing important compliance deadlines. Throughout the diversion or probation process, the monitor follows up with email reminders and finally phone calls if an attorney has missed a deadline.

The goal of the monitor is to help attorneys comply with their diversion or probation conditions and help them make a successful transition back to normal law practice.

In 2014, the case monitor also responded to concerns by attorneys monitored for alcohol dependence and switched to a compact testing system. (See previous page.)

The case monitor also helps run the various schools for attorneys intended to improve the provision of legal services to consumers.

In 2014, the case monitor:  Organized 5 Ethics Schools, attended by 132 attorneys  Organized 4 Trust Account Schools, attended by 92 people, the most since the Office of Attorney Regulation Counsel began offering the program.

INVENTORY COUNSEL

The Office of Attorney Regulation Counsel’s umbrella covers the end of an attorney’s career and sometimes the end of his or her life. When an attorney is no longer able to perform his or her duties to clients, either due to disability or death, and there’s no other party responsible for the attorney’s affairs, the Office of Attorney Regulation Counsel steps in to file a petition for appointment of inventory counsel.

With the assistance of volunteer Colorado attorneys, and investigators and attorneys from the office, the Inventory Counsel Coordinator reviews all of the files and takes steps to protect the interests of the attorney and the attorney’s clients. The file inventory and file return process may take months or years depending on the number of files, the area of practice, and the difficulty in locating the previous clients.

In 2014, the Office of Attorney Regulation Counsel:

 Filed 5 new petitions for appointment of inventory counsel;

 Worked 17 active inventory matters;

 Closed 12 inventory matters;

 Contacted 1,622 clients whose files contained original documents or involved a felony criminal matter; and

 Inventoried 4,301 client files, a 44 percent increase over last year. EDUCATION/OUTREACH

Since 1998, when the Colorado Supreme Court reorganized the state’s attorney discipline system, the Office of Attorney Regulation Counsel has addressed minor conduct by correcting it with education and training. But the office now recognizes the best way to protect the public is to prevent misconduct before it occurs.

In pursuit of that goal, the Office of Attorney Regulation Counsel seeks to promote an understanding of the legal field and offer attorneys educational opportunities that aid them in their practice of law.

That pursuit takes many forms.22

 The Office of Attorney Regulation Counsel conducts a majority of its outreach through talks and presentations. The office seeks to reach attorneys early and so its members often speak to students at the state’s two law schools. Members of the office also talk at bar association gatherings and CLE courses on various attorney ethics topics. And the office often delivers presentations at conferences for other bar counsel professionals.

 The office created and teaches schools for attorneys intended to improve the provision of legal services to consumers. These schools are:

o Ethics School, a seven-hour course focusing on everyday dilemmas that

22 For further details on the office’s Education and Outreach, see Appendix M.

confront attorneys;

o Trust Account School, a four-hour course that addresses the correct method for maintaining and administering a trust account;

o Professionalism School, a six-hour course that addresses the most common ethical dilemmas faced by newly admitted attorneys; and

o Practice Monitor Class, a half-day course instructing attorneys on how to be practice monitors for other attorneys required to have supervision as part of an alternative-to-discipline or probation program.

 The office’s attorneys and investigators serve on numerous local boards and are active in national and international legal organizations.

 Members of the office regularly make presentations on a national level, including presentations at the National Organization of Bar Counsel, the ABA Standing Committee on Client Protection, the National Conference of Bar Examiners, the National Client Protection Organization, the ABA Immigration Section, and the Commission on Lawyer Assistance Programs.

In 2014, the Office of Attorney Regulation Counsel:

 Delivered 159 public speeches and presentations;

In 2014, the office also continued two outreach initiatives:

1. The office continued disseminating the OARC Update, a quarterly email newsletter to the state’s 38,000-plus attorneys. 23 The newsletters contain deadline reminders and links to articles written by the office’s attorneys on best practices and ethical hot topics. Each newsletter in 2014 was opened by an average of 16,629 attorneys, of which an average of 4,422 read at least one article.

2. The office also continued sending letters to attorneys who change their practice area from public service or large firm practice to solo or small-firm practice. This group of attorneys face challenges in managing a private practice they likely didn’t face while working as a government or large-firm attorney. The letters ask the practitioner to fill out a self-audit checklist and discuss the

23 The two email newsletters sent in 2014 can be seen in the OARC Update section of Appendix M.

results with a seasoned solo or small firm practitioner. The letters also make these attorneys aware of resources that may help them during their transition.

COMMITTEES

There are numerous boards and committees composed of volunteer members who provide critical citizen input into regulating the practice of law in Colorado.24

Supreme Court Advisory Committee

The Supreme Court Advisory Committee is a volunteer committee that assists the Court with administrative oversight of the entire attorney regulation system. The Committee’s responsibilities are to review the productivity, effectiveness and efficiency of the Court’s attorney regulation system including that of the Office of Attorney Regulation Counsel, the Office of the Presiding Disciplinary Judge, the Colorado Lawyer Assistance Program (COLAP) and the Colorado Attorney Mentoring Program (CAMP).

Attorney Regulation Committee

The Attorney Regulation Committee is composed of nine volunteer members: six attorneys and three public members. The Committee, known as ARC, is the gatekeeper for all official disciplinary proceedings against respondent attorneys. It considers reports prepared by Office of Attorney Regulation Counsel attorneys and determines whether reasonable cause exists to seek discipline. The Committee also considers, and enters into, investigation-level diversion agreements.

Board of Trustees, Attorneys Fund for Client Protection

The Board of Trustees is composed of five attorneys and two non-attorney public members. The trustees evaluate, determine and pay claims made on the Attorneys Fund for Client Protection based on reports submitted by the Office of Attorney Regulation Counsel. The Board of Trustees issue a separate report, found on www.coloradosupremecourt.com.

Committee on the Colorado Rules of Professional Conduct

The Committee on the Colorado Rules of Professional Conduct is a composed of attorneys and judges from varying backgrounds. The Committee is charged with reviewing and updating the Colorado Rules of Professional Conduct. Prior to the

24 Committee rosters are listed on pages 8-10.

committee’s formation, numerous interest groups individually recommended rule changes to the Supreme Court. Those parties continue to request changes, but the Supreme Court expects the Committee to consider these recommendations in the first instance.

Law Committee

The Law Committee is composed of 11 volunteer attorney members. It reviews and approves the standards that must be met to pass the written examination.

Character and Fitness Committee

The Bar Committee is composed of 11 volunteer members: seven attorneys and four non-attorneys. The Committee is charged with investigating applicants’ character and fitness to practice law in Colorado.

Board of Continuing Legal and Judicial Education

The Board of Continuing Legal and Judicial Education consists of nine members: six attorneys, one judge and two non-attorneys. The Board administers the program requiring attorneys and judges to take continuing education courses.

Unauthorized Practice of Law Committee

The Unauthorized Practice of Law Committee is composed of nine members: six attorneys and three non-attorneys. The Committee has jurisdiction over allegations involving the unauthorized practice of law.

Colorado Commission on Judicial Discipline

The Colorado Commission on Judicial Discipline is composed of 10 members of the public. Members are appointed by the Supreme Court, the Governor, and the Legislature. The Commission is charged with monitoring the conduct of the judiciary, including judges of county and district courts, the Court of Appeals, and the Supreme Court.

APPENDICES

Appendix A OFFICE OF ATTORNEY REGULATION COUNSEL DUTIES

The Colorado Rules of Civil Procedure lay out Attorney Regulation Counsel’s multiple regulatory and administrative duties. These duties include:

1. Field and investigate complaints filed with the central intake division of the Office of Attorney Regulation Counsel;

2. Investigate and prosecute violations of the Colorado Rules of Professional Conduct under the direction of the Attorney Regulation Committee, C.R.C.P. 251.3;

3. Investigate and prosecute violations of the Colorado Rules of Professional Conduct relating to trust account overdraft notifications;

4. Investigate and prosecute attorney disability actions;

5. Investigate and prosecute petitions for immediate suspension, C.R.C.P. 251.8, C.R.C.P. 251.8.5, and C.R.C.P. 251.8.6;

6. Investigate and prosecute contempt proceedings for violations of the Colorado Rules of Procedure Regarding Attorney Discipline and Disability, C.R.C.P. 251.3(c)(7);

7. Investigate and prosecute violations of the Code of Judicial Conduct by attorneys serving as magistrates under the Colorado Rules for Magistrates;

8. Investigate and prosecute complaints alleging the unauthorized practice of law upon the request and direction of the Unauthorized Practice of Law Committee, C.R.C.P. 228, et seq.;

9. Coordinate and investigate the filing of claims with the Colorado Attorneys’ Fund for Client Protection under the direction of the Colorado Attorneys’ Fund for Client Protection Board of Trustees, C.R.C.P. 251.3, et seq., C.R.C.P. 252, et seq.;

10. Perform attorney admission duties, including the administration of the Colorado Bar Examination and all character and fitness determinations;

and represent and counsel the Colorado State Board of Law Examiners in inquiry panels and formal hearings as required by the Rules Governing Admission to the Practice of Law in Colorado;

11. As requested, represent and serve as special counsel to the Commission on Judicial Discipline in matters related to the removal, retirement, suspension, censure, reprimand, or other discipline of judges, Colorado Rules of Judicial Discipline, Chapter 24;

12. Obtain appointment of inventory counsel in cases where an attorney has become disabled, disappeared, or died, and assist inventory counsel with the client files and funds;

13. Provide extensive educational opportunities to the practicing bar and the public on topics related to attorney ethics; and

14. Perform duties on behalf of the Board of Continuing Legal and Judicial Education pursuant to the Colorado Supreme Court’s interim order dated December 1, 2011.

The various duties of Attorney Regulation Counsel are set forth individually to reflect a summary of work performed in each area. The annual report of the Colorado Attorneys’ Fund for Client Protection is under separate cover.

In 2014, the Office of Attorney Regulation Counsel employed 62 full-time employees.

Appendix B BAR EXAM STATISTICS

Appendix C COLORADO ATTORNEY DEMOGRAPHICS Attorney Registration changed its registration form to collect better demographic statistics on the state’s lawyer profession. With an accurate picture of Colorado’s lawyer population, the office hopes to provide better resources to specific groups of attorneys in the future.

3500

3002 2014 - COLORADO WOMEN ATTORNEYS 3000

2441 2500

1953 2000 Active - 9,317 1500 Inactive - 1167 12031172 1174 4,648 1000 Total - 16,117 615 681

500 320 127 47 7 45 0 11 0 29 & Younger30-39 40-49 50-59 60-69 70-79 80-89 90+ No valid DOB Age

4500 4021 2014 - COLORADO MEN ATTORNEYS 4000 3511 3500 3412 3410

3000

2500 2197 Active - 2000 16,348 1667 1701 Inactive - 1500 1248 1144 8,141 Total - 31,934 1000 704 532 533 500 203 166 29 11 0 29 & Younger30-39 40-49 50-59 60-69 70-79 80-89 90+ No valid DOB Age

Appendix D INTAKE STATISTICS

TABLE 1 Percent Change Year Complaints Filed From Prior Year 2014 3,528 (9%) 2013 3,883 (3%) 2012 3,983 (2%) 2011 4,081 (0%) 2010 4,089 (2%) 2009 4,169 1% 2008 4,119 3%

TABLE 2

Intake Additional Additional Year Complaint Calls Intake Calls Miscellaneous Calls 2014 3,528 5,263 11,318 2013 3,883 4,641 19,349 2012 3,983 4,489 16,093 2011 4,081 4,473 15,241 2010 4,089 4,906 16,026 2009 4,169 4,720 17,014 2008 4,119 5,142 18,850

Regulation Counsel (or Chief Deputy Regulation Counsel) reviews all offers of diversion made by the central intake attorneys. Additionally, at the request of

either the complainant or the respondent-attorney, Regulation Counsel reviews any determination made by a central intake attorney.

One of the goals of central intake is to handle complaints as quickly and efficiently as possible. In 1998, prior to central intake, the average time matters spent at the intake stage was 13 weeks.

TABLE 3

Average Time (weeks) 2014 7.7 2013 8.2 2012 1.8 2011 1.6 2010 1.7 2009 1.5 2008 1.5

The average time at intake is different in this annual report from previous annual reports. This is due to the following factors:

1. One of our long-tenured central intake attorneys left employment with the office in January 2014 and a new hire started in February 2014. Another central intake attorney left employment with the office in September 2014, and one of our trial lawyers moved into that position in December 2014. Finally, another long-tenured central intake attorney elected to retire in November 2014. The attorney hired to fill that position started in mid-January 2015. Because of these changes and the concomitant need to train new lawyers and reassign cases, central intake lawyers were confronted with increased caseloads and other responsibilities for much of the time period covered in this annual report.

2. Additionally, long-term absences for FMLA events resulted in extended periods of time in 2014 when central intake was understaffed.

3. Our case management software provides additional capabilities for file creation, handling and tracking that we did not have in our previous software system. JustWare gives us the capability to track files while we wait for additional information and documentation. Although we have that capability, we adopted policies to ensure files remain open only for so long as they are actively pending in the intake division. The policies implemented ensure the appropriate amount of procedural fairness for all parties involved in the attorney regulation process.

Critical to the evaluation of central intake is the number of matters processed for further investigation versus the number of cases processed for investigation prior to implementation of central intake. In 1998, prior to the implementation of central intake, 1,472 requests for investigation were filed, and 279 of those were processed for further investigation. In 2014, central intake handled 3,528 complaints; 346 of those cases were processed for further investigation. See Table 4.

TABLE 4 Investigations % Change From Year Initiated Prior Year 2014 346 (5%) 2013 366 (1%) 2012 368 (2%) 2011 377 (7%) 2010 407 1% 2009 401 11% 2008 360 (3%)

In conjunction with central intake, cases that are determined to warrant a public censure or less in discipline are eligible for a diversion program. See C.R.C.P. 251.13. Participation in diversion is always voluntary and may involve informal resolution of minor misconduct by referral to Ethics School and/or Trust School,25

25 Ethics School is a one-day program designed and conducted by the Office of Attorney Regulation Counsel. The program is a comprehensive review of an attorney’s duty to his/her

fee arbitration, an educational program, or an attorney-assistance program. If the attorney successfully completes the diversion agreement, the file in the Office of Attorney Regulation Counsel is closed and treated as a dismissal. In 2014 at the central intake stage, 45 matters were resolved by diversion agreements. See Table 5. (A representative summary of diversion agreements is published quarterly in The Colorado Lawyer.)

TABLE 5

Year Central Intake Diversion Agreements

2014 45 2013 42 2012 32 2011 42 2010 51(52)* 2009 45(53)* *The first number is actual diversion agreements. The second number in parentheses represents the number of separate requests for investigation involved in the files.

clients, courts, opposing parties and counsel, and the legal profession. The class also covers conflicts, fee issues, law office management, and trust accounts. Attendance is limited to attorneys participating in diversion agreements or otherwise ordered to attend. Trust School is a half-day program presented by the Office of Attorney Regulation Counsel. The school is available to attorneys and their staff. The class covers all aspects of an attorney’s fiduciary responsibility regarding the administration of a trust account. The class also offers instruction on accounting programs available for trust and operating accounts.

Appendix E Central Intake Inquiries (by practice area) January 31, 2014 — December 31, 2014

Central Intake Inquiries (by nature of complaint) January 31, 2014 — December 31, 2014

Appendix F INVESTIGATION STATISTICS

Matters docketed for further investigation are assigned to trial counsel within the Office of Attorney Regulation Counsel.

Trial counsel also investigates Unauthorized Practice of Law matters and Attorneys’ Fund for Client Protection matters. Statistics relating to the unauthorized practice of law are covered under a separate heading in this report. The Attorneys’ Fund for Client Protection report is filed separately.

TABLE 6

Dismissed To Directly to To Attorney Investigations by Presiding Presiding Placed in Year Regulation Other Pending Initiated Regulation Disciplinary Disciplinary Abeyance Committee Counsel Judge Judge 2014 346 76 20(24)* 143(151) 14(16) 60*** 0 250 2013 366 100 16(25)* 143(153)* 11(14)* 27 0 231 2012 368 92 17(25)* 165(171)* 11(17)* 13(32)* 0 184 2011 377 204 35(44)* 143(154)* 11 18(20)* 0 153 2010 407 128 25(39)* 217(223)* 14(29)* 30** 0 187 2009 401 140 25(33)* 115(122)* 8 7(12)* 0 229 2008 360 169 24(33)* 125(130)* 16(26) 7* 0 143

*The first number is actual files. The second number in parentheses represents the number of separate requests for investigation involved in the files.

**Twenty of the thirty matters placed in abeyance concerned one respondent.

***Forty of the sixty matters placed in abeyance concerned one respondent.

Dismissals With Educational Language

In October 2004, the Office of Attorney Regulation Counsel began tracking matters that are dismissed with educational language. The dismissals occur both at the intake stage and the investigative stage. In 2014, 190 matters were dismissed with educational language both at the intake stage and the investigative stage. Some of

the matters involve de minimis violations that would have been eligible for diversion. Some of the dismissals require attendance at Ethics School or Trust Account School. See Table 7.

TABLE 7

Dismissals With Educational Language

Year Intake Stage Investigative Total 2014 181 9 190 2013 113 20 133 2012 132 4 136 2011 199 25 224 2010 223 29 252 2009 159 27 186 2008 128 55 183

Review of Regulation Counsel Dismissals

A complainant may appeal Regulation Counsel’s determination to dismiss the matter to the full Attorney Regulation Committee. If review is requested, the Attorney Regulation Committee must review the matter and make a determination as to whether Attorney Regulation Counsel’s determination was an abuse of discretion. See C.R.C.P. 251.11; see Table 8.

TABLE 8

Number of Regulation Counsel Regulation Counsel Year Review Requests Sustained Reversed 2014 0 0 0 2013 1 1 0 2012 1 1 0 2011 2 2 0 2010 0 0 0 2009 4 4 0 2008 2 2 0

Appendix G ATTORNEY REGULATION COMMITTEE (ARC)

The Attorney Regulation Committee is composed of nine members, six attorneys and three public members appointed by the Supreme Court with assistance from the Court’s Advisory Committee. One of the Attorney Regulation Committee’s primary functions is to review investigations conducted by Attorney Regulation Counsel and determine whether there is reasonable cause to believe grounds for discipline exist. See C.R.C.P. 251.12. Following review of the investigation conducted by Attorney Regulation Counsel, the Attorney Regulation Committee may dismiss the allegations, divert the matter to the alternatives to discipline program, order a private admonition be imposed, or authorize Attorney Regulation Counsel to file a formal complaint against the respondent-attorney.

In 2014 the Attorney Regulation Committee reviewed 181 matters. See Table 9.

TABLE 9

Cases Reviewed by ARC 2014 181 2013 180 2012 171 2011 154 2010 225 2009 122 2008 126

TABLE 10

Number of Requests for Investigation Dismissed After Investigation by the Attorney Regulation Committee 2014 0 2013 0 2012 0 2011 0 2010 2 2009 0 2008 1

TABLE 11

Number of Weeks from Case Assigned to Dismissal by Regulation Counsel/ARC 2014 27.1 2013 26.9 2012 25.4 2011 30.3 2010 24.2 2009 22.2 2008 19.4

The Attorney Regulation Committee’s disposition of the 181 matters presented to the Committee is detailed in Table 12.26

26 Because some matters are carried over from one calendar year to the next, the number of matters reviewed by the Attorney Regulation Committee and the number of matters dismissed by Regulation Counsel generally will not conform to the number of cases docketed or completed in the investigation area. See Tables 4, 6, and 9

TABLE 12 Total Cases Formal Diversion Private Conditional Year Dismissals Acted Upon Proceedings Agreements Admonition Admissions By ARC 2014 102 37(45)* 4 0 0 163(181)* 2013 101 36(44)* 6(8)* 0 0 170(180)* 2012 123 33(39)* 9 0 0 165(171)* 2011 95 36(46)* 12(13)* 0 0 143(154)* 2010 175 37(42)* 5(6)* 0 2 219(225)* 2009 87 20(25)* 2(10)* 0 0 109(122)* 2008 95 24(28)* 6(7)* 0 1 126(131)*

*The first number is actual files. The second number in parentheses represents the number of separate requests for investigation involved in the files.

TABLE 13

Number of Weeks from Case Assigned to Completion of Report/Diversion/Stipulation

2014 24.7 2013 25.7 2012 24.8 2011 25.4 2010 23.2 2009 22.7 2008 19.6

Appendix H FORMAL COMPLAINTS

In 102 separate matters, the Attorney Regulation Committee found reasonable cause and authorized Attorney Regulation Counsel to file a formal complaint. See C.R.C.P. 251.12(e). Several matters were consolidated, and the number of formal complaints filed in 2014 was 41. In certain cases, after authority to file a formal complaint is obtained, Attorney Regulation Counsel and Respondent enter into a Conditional Admission to be filed with the Presiding Disciplinary Judge without the filing of a formal complaint. See Table 14.

TABLE 14

Year Formal Complaints Filed Resolved Prior to Complaint Filed

2014 41(56)* 7(8)* 2013 48(73)* 8(12)* 2012 47(92)* 2(5)* 2011 35(90)* 9(19)* 2010 85(184)* 10(20)* 2009 44(68)* 13(15)* 2008 55(99)* 13(23)*

*The first number is actual files. The second number in parentheses represents the number of separate requests for investigation involved in the files.

The formal complaints filed, and those pending from 2013, in the attorney discipline area resulted in 10 disciplinary trials; 5 sanctions hearings, and 1 reinstatement hearing. The trial division also participated in additional matters before the Presiding Disciplinary Judge (at issue conferences, status conferences, and pretrial conferences). Disposition of the matters is detailed in Table 15.

TABLE 15

Attorney Reinstatement Conditional Diversion Year Discipline Dismissals Abeyance Hearings Admissions Agreements Trials 2014 16 1 27(46)* 1 1 0 2013 10 2 17(25)* 0 0 0 2012 11 3 24(53)* 0 3 0 2011 22 3 43(91)* 2 7 1 2010 22(29)* 2 40(94)* 2 2 2 2009 16(32)* 1 42(65)* 0 3 4 2008 15(23)* 2 43(63)* 5(7)* 2 5

*The first number represents actual files; the second number in parentheses represents the number of separate requests for investigation involved in the files.

A diversion agreement is an alternative to discipline. Diversion agreements are useful in less serious matters in which an attorney must comply with certain conditions, which may include mediation, fee arbitration, law office management assistance, evaluation and treatment through the attorneys’ peer assistance program, evaluation and treatment for substance abuse, psychological evaluation and treatment, medical evaluation and treatment, monitoring of the attorney’s practice or accounting procedures, continuing legal education, ethics school, the multistate professional responsibility examination, or any other program authorized by the Court. See Table 16. TABLE 16

Diversion Agreements at Intake Stage

2014 45 2013 42 2012 32 2011 42 2010 51(52)* 2009 45(53)* 2008 45(49)*

Diversion Agreements at Investigative Stage Approved by the Attorney Regulation Committee

2014 37(45)* 2013 31(42)* 2012 33(39)* 2011 36(46)* 2010 37(42)* 2009 20(25)* 2008 24(28)*

Diversion Agreements at Trial Stage Approved by the Presiding Disciplinary Judge

2014 1 2013 0 2012 0 2011 2 2010 2 2009 0 2008 5(7)*

Conditional Admissions at Investigative Stage Approved by the Presiding Disciplinary Judge

2014 20(24)* 2013 16(25)* 2012 17(25)* 2011 35(44)* 2010 25(39)* 2009 25(33)* 2008 24(43)*

Conditional Admissions at Trial Stage Approved by the Presiding Disciplinary Judge

2014 27(46)* 2013 17(25)* 2012 24(53)* 2011 43(91)* 2010 40(94)* 2009 42(65)* 2008 42(63)*

*The first number represents actual files; the second number in parentheses represents the number of separate requests for investigation involved in the files.

After a formal complaint is filed with the Presiding Disciplinary Judge, the matter may be resolved by dismissal, diversion, conditional admission of misconduct,27 or by trial. The following tables compare the length of time formal complaints are pending before Presiding Disciplinary Judge. Additionally, a comparison of the time period from the filing of the formal complaint until a conditional admission of misconduct is filed, and a comparison of the time period from the filing of the formal complaint to trial, is provided.

TABLE 17

Average Weeks From Filing of Formal Complaint Year to Conditional Admission/Diversion Filed

2014 Presiding Disciplinary Judge 26.1 weeks 2013 Presiding Disciplinary Judge 23.0 weeks 2012 Presiding Disciplinary Judge 27.3 weeks 2011 Presiding Disciplinary Judge 31.9 weeks 2010 Presiding Disciplinary Judge 25.2 weeks 2009 Presiding Disciplinary Judge 19.6 weeks 2008 Presiding Disciplinary Judge 18.7 weeks

27 Pursuant to C.R.C.P. 251.22, at any point in the proceedings prior to final action by a Hearing Board, an attorney against whom proceedings are pending may tender a conditional admission of misconduct. The conditional admission constitutes grounds for discipline in exchange for a stipulated form of discipline. The conditional admission must be approved by Attorney Regulation Counsel prior to its submission.

Year Average Weeks From Filing of Formal Complaint to Trial 2014 Presiding Disciplinary Judge 27.6 weeks 2013 Presiding Disciplinary Judge 33.5 weeks 2012 Presiding Disciplinary Judge 25.9 weeks 2011 Presiding Disciplinary Judge 39.7 weeks 2010 Presiding Disciplinary Judge 32.3 weeks 2009 Presiding Disciplinary Judge 41.6 weeks 2008 Presiding Disciplinary Judge 40.8 weeks

Another comparison is the average time it takes from the filing of the formal complaint with the Presiding Disciplinary Judge until the Presiding Disciplinary Judge issues a final order. TABLE 18

Average Weeks from the Filing of the Formal Complaint Until the Final Order is Issued by the Presiding Disciplinary Judge Conditional Admission or Diversion Trial Held Filed 2014 28.8 weeks 42.7 weeks 2013 22.3 weeks 36.4 weeks 2012 32.9 weeks 62.3 weeks 2011 30.6 weeks 41.8 weeks 2010 26.4 weeks 49.7 weeks 2009 20.3 weeks 61.1 weeks 2008 24.6 weeks 57.2 weeks

Appendix I APPEALS

In 2014, five attorney discipline appeals were filed with the Court.

TABLE 19

Year Appeal Filed With: Number of Appeals

2014 Colorado Supreme Court 5 2013 Colorado Supreme Court 4 2012 Colorado Supreme Court 8 2011 Colorado Supreme Court 14 2010 Colorado Supreme Court 6 2009 Colorado Supreme Court 4 2008 Colorado Supreme Court 2

Appeals Appeals Appeals Appeals Appeals Year Filed Dismissed Affirmed Reversed Pending 2014 5 1 1 1 3 2013 4 0 4 0 4 2012 8 2 4 0 3 2011 14 3 5 1 9 2010 6 1 1 0 4 2009 4 0 4 0 3 2008 2 0 4 0 1

Appendix J FINAL DISPOSITIONS

Final dispositions of proceedings are reflected in Table 20.

TABLE 20

Public Year Abeyance Dismissals Diversions Suspensions Probations Disbarments Censures 2014 0 1 1 1 44(73)* 27(40)* 9(32)* 2013 0 0 0 5 46(61)* 25(43)* 18(27)* 2012 0 3 0 8 43 21 8 2011 2 7 2 9 60(61)* 40 16 2010 2 2 2 15 56(59)* 29 9 2009 4 3 0 9 52(54)* 28(29)* 8(11)* 2008 5 2 5(7)* 5 51 35 10

*The first number represents actual files; the second number in parentheses represents the number of separate requests for investigation involved in the files.

Appendix K Other Actions

Immediate Suspensions

In 2014, the Office of Attorney Regulation Counsel filed 19 petitions for immediate suspension.28 The petitions are filed directly with the Presiding Disciplinary Judge or the Colorado Supreme Court. The Presiding Disciplinary Judge or a Justice of the Supreme Court may issue an order to show cause why the respondent-attorney should not be immediately suspended. The respondent-attorney may request a prompt hearing if the Supreme Court enters an order to show cause. Dispositions of the immediate suspension petitions are reflected in Table 21.

TABLE 21

Suspended Suspended Felony Discharged/ Year Filed Suspended (Child (Failure to Convict Reinstated Withdrawn Pending Denied Support) Cooperate) ion 2014 19 5 0 5 3 0 5 0 1 2013 14 8 1 3 1 0 1 0 0 2012 16 3 0 6 0 2 0 3 1 2011 14 3 2 3 3 0 0 2 1 2010 19* 12 0 4 1 0 0 2 0 2009 17 7 0 6 1 0 0 4 1 2008 15 10 0 4 1 0 0 4 1

28 Immediate suspension is the temporary suspension by the Supreme Court of an attorney’s license to practice law. Ordinarily, an attorney’s license is not suspended during the pendency of disciplinary proceedings, but when there is reasonable cause to believe that an attorney is causing or has caused immediate and substantial public or private harm, immediate suspension may be appropriate. Petitions are typically filed when an attorney has converted property or funds, the attorney has engaged in conduct that poses an immediate threat to the administration of justice, or the attorney has been convicted of a serious crime. See C.R.C.P. 251.8. Additionally, under C.R.C.P. 251.8.5, a petition for immediate suspension may be filed if an attorney is in arrears on a child-support order. Note: On October 29, 2001, the Supreme Court adopted a rule change authorizing suspension of an attorney for failure to cooperate with Regulation Counsel. See C.R.C.P. 251.8.6. The rule change authorizes Regulation Counsel to file a petition directly with the Supreme Court alleging that an attorney is failing to cooperate in an investigation alleging serious misconduct. Proceedings under the rule are not disciplinary proceedings. See Comment to Rule 251.8.6.

(Matters filed in the previous calendar year may be carried over to the next calendar year.)

*One matter resulted in the attorney being disbarred. Disability Matters

The Office of Attorney Regulation Counsel filed 15 petitions/stipulations to transfer attorneys to disability inactive status in 2014. When an attorney is unable to fulfill his/her professional responsibilities because of physical, mental, or emotional illness, disability proceedings are initiated. An attorney who has been transferred to disability inactive status may file a petition for reinstatement with the Presiding Disciplinary Judge. See Table 22.

TABLE 22

Disability Dismissed/ Year Filed Inactive Discharged/ Reinstated Withdrawn Pending Status Denied 2014 15 13 2 0 0 1 2013 7 5 2 0 0 0 2012 8 9 2 0 0 0 2011 10 8 1 1 0 3 2010 6 4 1* 0 0 1 2009 13 14 2 2 1 2 2008 19* 12 1 2 5

(Matters filed in the previous calendar year may be carried over to the next calendar year.)

*One matter was closed due to the death of the respondent during the proceedings.

Contempt Proceedings

The Office of Attorney Regulation Counsel filed three motions recommending contempt with the Supreme Court resulting in 2 hearings before the court. Contempt proceedings are filed when an attorney practices law while under suspension or disbarment. See Table 23.

TABLE 23

Motions for Held in Discharged\ Year Withdrawn Pending Contempt Contempt Dismissed 2014 3 3 0 0 1 2013 1 0 0 0 1 2012 0 0 0 0 0 2011 1 0 0 0 1 2010 1 0 0 0 1 2009 0 0 0 0 0 2008 1 1 0 0 0

(Matters filed in the previous calendar year may be carried over to the next calendar year.)

Magistrates

Effective July 2000, the Office of Attorney Regulation Counsel undertook the responsibility of handling complaints against magistrates. See C.R.C.P. 251.1(b). In the year 2014, the Office of Attorney Regulation Counsel received 45 complaints against magistrates. See Table 24.

TABLE 24

Investigation Year Complaints Dismissed Diversion Initiated 2014 45 43 0 2 pending 2013 43 43 0 0 2012 45 42 1 2 2011 66 66 0 0 2010 55 55 0 0 2009 51 51 0 0 2008 49 49 0 0

Reinstatement and Readmission Matters Eight reinstatement or readmission matters were filed with the Office of Attorney Regulation Counsel in 2014. When an attorney has been suspended for at least one

year and one day, has been disbarred, or the court’s order requires reinstatement, he/she must seek reinstatement or apply for readmission to the Bar.29

29 A disbarred attorney may seek readmission eight years after the effective date of the order of disbarment. The individual must retake and pass the Colorado Bar examination and demonstrate fitness to practice law. Any attorney suspended for a period of one year and one day or longer must file a petition for reinstatement with the Presiding Disciplinary Judge. In some matters, reinstatement proceedings are ordered when the suspension is less than one year and one day. See C.R.C.P. 251.29.

TABLE 25

Year Filed Readmitted Reinstated Dismissed Withdrawn Denied Pending 2014 8 0 4 1 0 1 4 2013 6 1 1 0 1 0 3 2012 8 0 4 1 0 1 6 2011 3 1 6 0 0 1 3 2010 12 0 5 0 2 1 6 2009 6 1 1 1 4 0 5 2008 10 1 7 0 0 0 2

(Matters filed in the previous calendar year may be carried over to the next calendar year.)

Trust Account Notification Matters

All Colorado attorneys in private practice must maintain a trust account at a financial institution doing business in Colorado. The financial institution must agree to report to Regulation Counsel any properly payable trust account instrument presented against insufficient funds, irrespective of whether the instrument is honored. The report by the financial institution must be made within five banking days of the date of presentation for payment against insufficient funds.

The reporting requirement is a critical aspect of the Attorneys’ Fund for Client Protection. The rule is designed to operate as an “early warning” that an attorney may be engaging in conduct that might injure clients.

In 2014, the Office of Attorney Regulation Counsel received 269 notices of trust account checks drawn on insufficient funds. Because of the potentially serious nature, the reports receive immediate attention from the Office of Attorney Regulation Counsel. An investigator or attorney is required to contact the attorney account holder and the financial institution making the report. A summary of the investigator’s finding is then submitted to Attorney Regulation Counsel for review. If Attorney Regulation Counsel determines that there is reasonable cause to believe that a conversion of client funds occurred, the matter is immediately assigned to

trial counsel. If there is no evidence of intentional misconduct or inappropriate accounting practices, the matter is dismissed by Attorney Regulation Counsel.

TABLE 26 Checks Cashed Conversion/ Bookkeeping Prior To Comminglin Total Bank / Deposit g Assigned Year Diversion Other 30 DWEL Reports Errors Deposit Clearing/ to Errors Improper Trial Endorsemen Attorney t*** 2014 269 13 60 20 7(14) 5 86 2013 247 25(5)** 51(19)** 30(12)** 8(22) 0 141(29)* 33 * 106(18)* 2012 262 31(1)** 69(11)** 49(22)** 0*** 0 33 * 2011 256 25 111(19)** 28(15)** 23 2 60(9)** 26 2010 276 34(2)** 125(22)** 29(16)** 12 4(5)* 64(8)** 19 200 278 34(1)** 125(22)** 23(17)** 14 5(6)* 64(10)** 11 9 200 273 31 92(11)** 48(13)** 18 7(12)* 72(15)* 22 8

*The first number represents actual files; the number in parentheses represents the number of separate requests for investigation involved in the files.

**The number in parentheses represents the number of cases that were dismissed with educational language.

***In 2012, four matters involved checks that were not endorsed or endorsed improperly. Because of the switch in tracking software, we are unable to accurately state the number of conversion cases processed in 2012.

30 The category Other includes errors due to unanticipated credit card fees or charges, employee theft, forgery, stolen check or other criminal activity, check written on wrong account, charge back item (a fee charged to the law for a client’s NSF check) and check or wire fee not anticipated.

Appendix L Unauthorized Practice of Law The Office of Attorney Regulation Counsel investigates and prosecutes allegations of the unauthorized practice of law. In 2014, the Office of Attorney Regulation Counsel received 72 complaints regarding the unauthorized practice of law. See Table 27.

TABLE 27

UPL Complaints Received

2014 72 2013 59 2012 80 2011 147 2010 94 2009 144 2008 97

The Unauthorized Practice of Law Committee may direct trial counsel to seek a civil injunction by filing a petition with the Supreme Court or, in the alternative, offer the respondent an opportunity to enter into a written agreement to refrain from the conduct in question, to refund any fees collected, and to make restitution. Additionally, trial counsel may institute contempt proceedings against a respondent that is engaged in the unauthorized practice of law. See C.R.C.P. 238.

In 2014, the Unauthorized Practice of Law Committee took action on 33 unauthorized practice of law matters, and 35 complaints were dismissed by Regulation Counsel, for a total of 68 completed matters. See Table 28.

TABLE 28

Unauthorized Practice of Law Dispositions

Dismissed Dismissed Formal After by (injunctive or Year Filed Investigation Abeyance Agreements Regulation contempt by UPL Counsel proceedings) Committee

2014 73 35 0 0 14 19 2013 59 20 0 0 3 13 2012 80 64 0 0 13 29 2011 147 47 0 0 14 27 2010 94 24 0 2 4 25 2009 144 33(6) ** 0 0 12 17(25)* 2008 97 25(17)** 0 0 4 17(26)*

*The first number represents actual files; the number in parentheses represents the number of separate requests for investigation involved in the files.

**The number in parentheses are the cases dismissed with educational language.

(Matters filed in the previous year may be carried over to the next calendar year.)

UPL Cases 2014, by Type of Complaining Witness

Attorney Observes USCIS Client Judge UPL advertizing 1% 3% Attorney Learns of 5% Subsequent 3% Underlying Facts of Attorney UPL 7% 25%

Attorney Victimize Attorney Regulation d by UPL Counsel 7% 24%

Public 25%

Attorney Learns of Underlying Facts of UPL 18

Public 18

Attorney Regulation Counsel 17

Attorney Victimized by UPL 5

Subsequent Attorney 5

Judge 4

Attorney Observes UPL advertizing 2

Client 2

USCIS 1

0 2 4 6 8 10 12 14 16 18 20

UPL Cases 2014, by Type of Legal Service

Estate-planning Bankruptcy document document preparation preparation Other Other legal 1% 4% 6% Offering legal document advice preparation 24% 10% Immigration form preparation 12%

State/Federal court pleading preparation 22% Holding out as an attorney 21%

Offering legal advice 17

State/Federal court pleading preparation 16

Holding out as an attorney 15

Immigration form preparation 9